Peo in Interest of JGG

24CA0132 Peo in Interest of JGG 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0132
El Paso County District Court No. 21JV801
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Appellee,

In the Interest of J.G.G., a Child,

and Concerning M.G.,

Appellant.

JUDGEMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Kenneth R. Hodges, County Attorney, Amy C. Fitch, Assistant County Attorney,
Melanie E. Gavisk, Assistant County Attorney, Colorado Springs, Colorado, for
Appellee

Josi McCauley, Guardian Ad Litem

Harald Van Gaasbeek, Office of Respondent Parents’ Counsel, Fort Collins,
Colorado, for Appellant
¶1 M.G. (father) appeals the judgment terminating the

parent-child legal relationship with his child, J.G.G. We affirm.

I. Background

¶2 In 2019, the El Paso County Department of Human Services

(Department) removed the newborn child from mother’s care and

placed her with M.C. and L.C. (foster parents). The Department

then filed a petition in dependency and neglect. Father did not

appear in the case for about a year, and the child remained in the

care of the foster parents. In October 2021, the juvenile court

allocated parental responsibilities to father and closed the case.

¶3 About three weeks later, law enforcement officers responded to

father’s home and discovered the child — who was two years old at

the time — inside the home unsupervised. Among other things, the

officers reported that the home’s windows had been left open, drug

paraphernalia and marijuana were within the child’s reach, and

there was an open pocketknife on the floor near the child. The

Department removed the child from father’s care and returned her

to the foster parents. The Department filed another petition in

dependency and neglect. After father admitted the allegations, the

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juvenile court adjudicated the child dependent and neglected and

adopted a treatment plan for father.

¶4 Father asked the Department to investigate paternal

great-uncle and great-aunt (collectively, paternal relatives), who

lived in Texas, for placement. The Department eventually

completed an Interstate Compact on the Placement of Children

(ICPC) home study request with Texas, and a department in Texas

approved paternal relatives for placement. Nevertheless, the

juvenile court decided to maintain the child’s placement with the

foster parents and ordered the Department to provide the paternal

relatives with family time and family therapy to facilitate a possible

transition to the paternal relatives’ home. Although the paternal

relatives participated in family time and family therapy, the court

never changed placement to them.

¶5 In May 2023, the Department moved to terminate father’s

parental rights. The juvenile court held an evidentiary hearing over

three days in August, November, and December 2023. Shortly after

the first hearing date, the paternal relatives moved to intervene in

the case and for a change of placement, under section 19-3-702,

C.R.S. 2024. The court then heard evidence related to both the

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motion to terminate and the motion for change of placement at the

same time for the remainder of the hearing. After hearing the

evidence, the court denied the paternal relatives’ request to change

placement and granted the Department’s motion to terminate

father’s parental rights.

II. Reasonable Efforts

¶6 Father asserts that the juvenile court erred by finding that the

Department made reasonable efforts to rehabilitate him and reunify

him with the child. We disagree.

A. Applicable Law and Standard of Review

¶7 In deciding whether to terminate parental rights under section

19-3-604(1)(c), C.R.S. 2024, the juvenile court must consider

whether the county department of human services made reasonable

efforts to rehabilitate the parent and reunite the parent with the

child. §§ 19-1-103(114), 19-3-208, 19-3-604(2)(h), C.R.S. 2024.

The Colorado Children’s Code defines “reasonable efforts” as the

“exercise of diligence and care” to reunify parents with their

children and states that the standard is satisfied if the department

provides services in accordance with section 19-3-208.

§ 19-1-103(114). In turn, section 19-3-208 requires departments to

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provide screenings, assessments, and individual case plans for the

provision of services; home-based family and crisis counseling;

information and referral services to available public and private

assistance resources; family time; and placement services.

§ 19-3-208(2)(b).

¶8 In assessing the department’s reasonable efforts, the juvenile

court should consider whether the services provided were

appropriate to support the parent’s treatment plan, People in

Interest of S.N-V., 300 P.3d 911, 915 (Colo. App. 2011), by

“considering the totality of the circumstances and accounting for all

services and resources provided to a parent to ensure the

completion of the entire treatment plan,” People in Interest of

My.K.M. v. V.K.L., 2022 CO 35, ¶ 33. But the parent is ultimately

responsible for using the services to comply with the plan, People in

Interest of J.C.R., 259 P.3d 1279, 1285 (Colo. App. 2011), and the

court may consider a parent’s unwillingness to participate in

treatment in determining whether the department made reasonable

efforts, see People in Interest of A.V., 2012 COA 210, ¶ 12.

¶9 Whether a department of human services satisfied its

obligation to make reasonable efforts is a mixed question of fact and

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law. People in Interest of A.S.L., 2022 COA 146, ¶ 8. We review the

juvenile court’s factual findings for clear error and review de novo

its legal determination, based on those findings, as to whether the

department satisfied its reasonable efforts obligation1. Id.

B. Analysis

¶ 10 The record supports the juvenile court’s finding that the

Department made reasonable efforts to rehabilitate father and

reunite him with the child. Father’s treatment plan required,

among other things, that he participate in family time, mental

health treatment, and substance abuse treatment. The record

shows that the Department provided father with the necessary

services to comply with these objectives, including supervised

family time services and evaluations for substance abuse and

mental health. The caseworker testified that father stopped

participating in family time in March 2023 and never completed any

evaluations.

1 We need not address whether there is a divisional split on the

standard of review for reasonable efforts because under either
standard, we reach the same conclusion. See People in Interest of
E.S., 2021 COA 79, ¶ 17.

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¶ 11 Therefore, the record indicates that the Department provided

father with the necessary services to complete his treatment plan,

but he did not participate in those services to become a fit parent

and reunite with the child. See A.V., ¶ 12; S.N-V., 300 P.3d at 915.

Consequently, we decline to disturb the juvenile court’s

determination.

¶ 12 On appeal, father does not assert that the Department failed

to provide any of the services listed above or any other services

listed in section 19-3-208 that were necessary for him to comply

with his treatment plan and become a fit parent. Rather, father

contends that the Department did not make reasonable efforts to

place the child with the paternal relatives. Yet, for the purposes of

a termination proceeding, the Department does not have a duty to

investigate relatives to satisfy its reasonable efforts obligation

because “those aren’t services aimed at rehabilitating father.”

People in Interest of B.H., 2021 CO 39, ¶ 79 (noting that section

19-3-604(2)(h) “doesn’t ask the trial court to assess whether the

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Department mailed family finding letters or explored enough

placement options”).2

¶ 13 However, even assuming, without deciding, that the

Department needed to investigate relatives to satisfy its reasonable

efforts obligation, we still discern no reversible error.

¶ 14 The record shows that father provided the Department with

contact information for the paternal relatives in November 2021,

but the Department did not initiate the ICPC home study request

until April 2022. The caseworker explained that the delay in

sending the ICPC request resulted, at least in part, from

miscommunication between the intake and ongoing caseworkers.

Nevertheless, the Department later conceded that it had not made

reasonable efforts to initiate the ICPC, agreed to set up

reintegration therapy, and stipulated that it would not file for

termination for at least three months after therapy had begun.

2 We note that section 19-3-403(VI), C.R.S. 2024 (effective August 7,

2023) now requires the Department to “exercise due diligence to
contact and engage” relatives who respond to the department’s
notice of placement possibilities; authorizes the court to conduct a
review of the Department’s due diligence upon request by a relative
or party to the proceedings; and authorizes the court to order the
Department to take additional measures to engage the relatives.
See also Ch. 367, sec. 2, § 19-3-403, 2023 Colo. Sess. Laws 67.

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¶ 15 After Texas approved the ICPC, the Department began efforts

to set up reintegration therapy and establish contact between the

paternal relatives and the child. The caseworker testified that the

Department did not receive the necessary releases from the paternal

relatives until September 2022 and then the service provider had

problems reaching the paternal relatives. However, by December

2022, reintegration therapy had not been set up, in large part,

because the child’s therapist resisted moving forward. As a result,

the juvenile court ordered that visits and family therapy begin as

soon as possible, and the Department agreed to provide the child

with a different therapist. The family therapist said that he did nine

telehealth sessions and six in-person sessions with the family. The

caseworker testified that the Department also paid for the paternal

relatives to travel to Colorado five separate times, and they had

about five visits per trip, which accounted for at least twenty-five

visits with the child since June 2023.

¶ 16 Nevertheless, the professionals involved in the case did not

recommend that the child be placed with the paternal relatives,

citing concerns that another disruption in the child’s young life

could be detrimental to her ability to form healthy attachments.

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The juvenile court relied primarily on this evidence when deciding

to decline placement with the paternal relatives. The court also

acknowledged that the “delays” in setting up services for the

paternal relatives were “unfortunate,” but it concluded that the

evidence did not establish that there would have been a different

result because “the lack of capacity to transition” would be the

same “even if the delays” were not present.

¶ 17 In sum, the record establishes that, despite the delays in

setting up services for the paternal relatives, the Department still

made reasonable efforts to build a relationship between them and

the child. And in any event, even without the delays, the juvenile

court found, with record support, that the result would have

ultimately been the same. We therefore discern no error.

III. Less Drastic Alternatives

¶ 18 Father contends that the juvenile court erred by finding that

there was no less drastic alternative to termination. We disagree.

A. Applicable Law and Standard of Review

¶ 19 Before terminating parental rights under section

19-3-604(1)(c), the juvenile court must consider and eliminate less

drastic alternatives. People in Interest of M.M., 726 P.2d 1108,

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1122-23 (Colo. 1986). In considering less drastic alternatives, a

court must give primary consideration to the child’s physical,

mental, and emotional conditions and needs. § 19-3-604(3); People

in Interest of Z.P., 167 P.3d 211, 214 (Colo. App. 2007). Long-term

placement may not be a viable alternative to termination if the child

needs a stable, permanent home that can be assured only by

adoption. Z.P., 167 P.3d at 214.

¶ 20 To aid the juvenile court in determining whether there is a less

drastic alternative to termination, the department must evaluate a

reasonable number of people the parent identifies as placement

options. People in Interest of D.B-J., 89 P.3d 530, 532 (Colo. App.

2004). But the department is not obligated to “independently

identify and evaluate other possible placement alternatives.” Z.P.,

167 P.3d at 215.

¶ 21 For a less drastic alternative to be viable, it must do more than

“adequate[ly]” meet a child’s needs; rather, it must be the “best”

option for the child. People in Interest of A.M. v. T.M., 2021 CO 14,

¶ 27. Therefore, if the juvenile court considers a less drastic

alternative but finds instead that termination is in the child’s best

interests, it must reject the less drastic alternative and order

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termination. Id. at ¶ 32. And under those circumstances, we must

affirm the court’s decision if its findings are supported by the

record. B.H., ¶ 80.

B. Analysis

¶ 22 The record supports the juvenile court’s finding that there was

no less drastic alternative to termination. It is undisputed that

father did not comply with his treatment plan, he was unfit, and his

conduct or condition was unlikely to change in a reasonable time.

See A.M., ¶ 48 (noting that the parent did not challenge the

propriety of the court’s findings on the criteria in section

19-3-604(1)(c)); see also People in Interest of A.R., 2012 COA 195M,

¶ 38 (permanent placement is not a viable alternative to termination

if an ongoing relationship with the parent would not be beneficial).

Several witnesses testified that the child needed a stable home,

which could only be achieved through adoption. See Z.P., 167 P.3d

at 214. Finally, the caseworker testified that, even if the court

approved placement with the paternal relatives, allocation of

parental responsibilities (APR) with father was still not a viable

option.

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¶ 23 The record therefore shows that the juvenile court considered

less drastic alternatives but rejected them because they were not in

the child’s best interests. See A.M., ¶ 32. And because the record

supports the court’s finding, we cannot disturb it. See B.H., ¶ 80.

¶ 24 Father’s appellate contention focuses entirely on the juvenile

court’s decision to reject placement with the paternal relatives.

However, we need not address his contentions because the court

found, with record support, that, even if it approved placement with

the paternal relatives, an APR was not a less drastic alternative to

termination. In other words, even if father was correct about the

court’s placement decision, the court still properly rejected less

drastic alternatives. The record, as described above, otherwise

indicates that the Department made efforts to investigate the

paternal relatives for placement. See D.B-J., 89 P.3d at 532. We

therefore discern no basis for reversal of the termination judgment.

IV. Lack of Fundamental Fairness Based on Alleged Racial Bias
and Discrimination

¶ 25 Father, who is Hispanic, argues that he was denied a

fundamentally fair proceeding because of racial bias and

discrimination against him and his family. We disagree.

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A. Standard of Review and Preservation

¶ 26 We review procedural due process claims de novo. People in

Interest of C.J., 2017 COA 157, ¶ 25.

¶ 27 The Department and the guardian ad litem (GAL) assert that

we should not address father’s contention because he did not

preserve it. Generally, in civil cases, such as dependency and

neglect proceedings, appellate courts will “review only issues

presented to and ruled on by the lower court.” People in Interest of

M.B., 2020 COA 13, ¶ 14. A party is not required to use talismanic

language to preserve an issue for appeal, People in Interest of S.Z.S.,

2022 COA 133, ¶ 18, but the party must still present to the juvenile

court “the sum and substance of the argument” made on appeal,

Berra v. Springer and Steinberg, P.C., 251 P.3d 567, 570 (Colo. App.

2010).

¶ 28 In father’s closing argument, he asserted that this was “a case

about institutional racism” and that “institutional racism” was

“alive and well and operating to disadvantage [father’s] family.” He

then discussed several instances of alleged racial bias and

discrimination that occurred during the case and asked the juvenile

court to deny the termination motion on those grounds.

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¶ 29 The Department and the GAL contend that, although father

mentioned “institutional racism,” he did not argue that he was

denied his due process right to a fundamentally fair proceeding or

reference any law related to a due process violation. True, father

did not specifically argue that his due process right to a

fundamentally fair proceeding had been violated, but we conclude

that his closing argument still presented the “sum and substance”

of the argument raised on appeal. See id. We therefore consider

the argument properly preserved for appellate review.

B. Applicable Law and Analysis

¶ 30 To prove a violation of due process, “one must first establish a

constitutionally protected liberty interest that warrants due process

protections.” M.S. v. People, 2013 CO 35, ¶ 22. Because parents

have a fundamental liberty interest in the care, custody, and

control of their children, A.M., ¶ 17, due process requires the

government to provide fundamentally fair procedures to a parent

facing termination, A.M. v. A.C., 2013 CO 16, ¶ 28.

¶ 31 In termination proceedings, a parent is entitled to notice of the

hearing, advice of counsel, and the opportunity to be heard and

defend. People in Interest of Z.P.S., 2016 COA 20, ¶ 40. The

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opportunity to be heard must be provided at a meaningful time and

in a meaningful manner. Patterson v. Cronin, 650 P.2d 531, 537

(Colo. 1982). Generally, if the parent receives these procedural

protections, then due process is satisfied. See People in Interest of

R.J.B., 2021 COA 4, ¶ 33.

¶ 32 In support of his argument, father describes several events

that occurred during the case that illustrate the alleged bias of the

Department, the juvenile court, and the GAL. These events include

the following:

• The Department improperly delayed completion of the

ICPC home study.

• The Department prevented the paternal relatives from

having contact with the child until January 2023.

• The caseworker said that the Department would have

likely placed the child with the paternal relatives if they

had come forward in the first case.

• The Department delayed reintegration therapy for several

months.

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• The therapist contracted by the Department did not

support reintegration therapy or placing the child with

the paternal relatives.

• The Department refused to pay for the paternal relatives

to travel from Texas to Colorado.

• The Department and the GAL objected to father’s request

for the child to have a Hispanic therapist, and the court

denied the request.

• The court commented in a hearing that “[e]very

appearance needs to be made in this case that [the

paternal relatives are] being given a fair shot.”

• The court found that the child’s ability to form a secure

attachment was more important than preserving her

connection to her culture.

• The court found that the foster parents met the definition

of kin in the Colorado Children’s Code.

• The GAL argued on multiple occasions that the child

should not be placed with the paternal relatives.

• The GAL assumed that a witness was from Mexico, even

though she was from Colombia.

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• In response to father’s argument that it was important

for the child to be connected to her Hispanic culture, the

Department asserted that the child had a cultural

connection to her foster parents through shared Native

American heritage. In so doing, the Department showed

cultural insensitivity because it treated the child’s

potential Apache and Cherokee heritage as culturally

equivalent to the foster home’s membership in the

Choctaw tribe.3 TR 9/1/2023, pp 26-28

¶ 33 Although some of these events are concerning, we conclude,

for the following reasons, that father has not established that his

due process right to a fundamentally fair proceeding was violated as

a result.

¶ 34 First, the undisputed record shows that father was

represented by counsel throughout the proceedings, received notice

of what he was required to do to prevent a termination of his

parental rights, and was provided the opportunity to present

evidence and question adverse witnesses during the evidentiary

3 The record also reflects that all eleven tribes notified by the

Department indicated the child was not eligible for membership.

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hearing, which lasted three days in total. We conclude he received

the process he was due. Id. at ¶ 33.

¶ 35 Second, the record does not definitively show that the

Department’s actions were the result of racial bias and

discrimination. For example, the record shows that at least some of

the delays related to the ICPC were the result of negligence rather

than malfeasance. Likewise, the delays in getting reintegration and

visits set up were partially caused by delays on the paternal

relatives’ side. And nothing in section 19-3-208 required the

Department to pay for the paternal relatives to travel to Colorado.

Still, the caseworker testified that the Department did not object to

providing travel funds but needed a court order first. The

caseworker also explained that the paternal relatives had never

asked the Department for funding before June 2023. Overall,

father has not directed us to any specific statements that would

indicate that these actions were based on the Department’s bias

toward father or his family.

¶ 36 Third, even if some of the Department’s issues might have

been caused by bias or discrimination, the juvenile court corrected

those missteps. For instance, the court made a lack of reasonable

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efforts finding based on the ICPC delays (which extended the length

of the case), ordered visits to begin immediately even though the

reintegration process had not moved forward, facilitated the

removal of the child’s therapist, and ordered the Department to pay

for the paternal relatives to travel to Colorado. As for the request

for a Hispanic therapist, father did not make that request until after

the termination hearing had begun and the court denied it because

changing therapists again at such a late date would not be in the

child’s best interests. Notably, father never asked the court to

remove the Department or a caseworker because of a conflict of

interest. See People in Interest of T.D., 140 P.3d 205, 222 (Colo.

App. 2006) (stating that a court may disqualify a county department

and appoint a department of human services in another county if

the department has a conflict of interest with the parents),

abrogated on other grounds by People in Interest of A.J.L., 243 P.3d

244 (Colo. 2010).

¶ 37 Fourth, father has not established that the juvenile court’s

rulings demonstrated racial bias or discrimination. Father points to

adverse legal rulings in support of his argument, but we see nothing

to suggest that they were improperly motivated. Instead, the

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evidence presented to the court supported its decisions. Nor are we

convinced that the judge demonstrated bias or discriminated

against father’s family by saying that the Department needed only

to appear like it was giving the paternal relatives a “fair shot.” As

described above, the court’s actions at every turn show that it

pushed the Department to make every effort to establish a

relationship between the paternal relatives and the child. Notably,

father never moved to recuse the judge, see People v. Jennings,

2021 COA 112, ¶ 21 (a party waives a challenge to an appearance of

partiality by failing to file a timely motion), and he does not assert

on appeal that the judge should be disqualified for actual bias, see

People in Interest of A.P., 2022 CO 24, ¶ 28 (noting that the Code of

Judicial Conduct requires disqualification when a judge has a

personal bias or prejudice toward a party).

¶ 38 Finally, even if the original GAL was biased or she

discriminated against father and his family, we discern no

reversible error because that GAL was removed from the case for

unrelated reasons after the first day of the hearing and replaced

with a different GAL. And although the second GAL made many of

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the same recommendations and requests as the first GAL, father

does not take issue with the second GAL.

¶ 39 In sum, we are not convinced that father was denied a

fundamentally fair proceeding. Rather, father was afforded each of

the required procedures described above during the termination

proceeding. For example, father received ample notice of the

Department’s intent to seek termination of his parental rights; he

was always represented by counsel during the proceeding; and

counsel cross-examined witnesses, presented evidence in support of

father’s case, raised timely objections, and made a closing

argument asking the juvenile court to deny the motion to terminate

father’s parental rights. Ultimately, father does not explain how

any of these procedures were impacted by his claim of bias and

discrimination.

V. Definition of Kin

¶ 40 Father maintains that the juvenile court misinterpreted the

definition of kin in section 19-1-103(91) in deciding that the foster

parents qualified as kin in this case. We need not address the

merits of his argument because any error is harmless.

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¶ 41 An “appellate court may disregard any error or defect not

affecting the substantial rights of the parties.” C.A.R. 35(c). An

error affects a substantial right only if it can be said with fair

assurance that it substantially influenced the outcome of the case

or impaired the basic fairness of the trial. People in Interest of C.C.,

2022 COA 81, ¶ 20.

¶ 42 Recall that the juvenile court considered both the change of

placement and the termination motions simultaneously and

therefore made rulings on both motions following the hearing. In

its ruling, the court considered each of the factors in section

19-3-702(6) when it declined to place the child with the paternal

relatives. Section 19-3-702(6)(h) provides that the court should

consider the “possible effects” on the child’s “emotional well-being”

if the child were to be “removed from the caregiver’s home,” but it

must not deny placement with a child’s “relative or kin” based

“solely upon the ordinary bonding and attachment to a foster

parent as a result of time spent in the home.” In this context, the

court found that the foster parents qualified as kin under the

definition in the Children’s Code. See § 19-1-103(91) (defining kin

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to include “a person who has a prior significant relationship with

the child”).

¶ 43 The juvenile court’s interpretation of the definition of kin did

not impact the outcome of the case for two reasons. First, father is

appealing the termination of his parental rights, not the denial of

the placement motion. And as explained in Part III.B. above, the

court’s decision to deny the paternal relatives’ motion for change of

placement did not affect its determination that there was no less

drastic alternative to termination. Second, even if the placement

decision somehow influenced the termination, the court’s analysis

of section 19-3-702(6)(h) did not end with its decision that the foster

parents met the definition of kin. Rather, the court acknowledged

that “the spirit of the sentence” probably required it to consider the

foster parents in the case as foster parents rather than kin and

therefore it conducted the analysis as required by section

19-3-702(6)(h).

¶ 44 In sum, any error related to the juvenile court’s interpretation

of the definition of kin in section 19-1-103(91) was harmless, and

we therefore discern no basis for reversal.

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VI. Disposition

¶ 45 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.

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